Deon Stewart v. The State of Texas--Appeal from 122nd District Court of Galveston County (Memorandum Opinion )

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State: Texas

Court: Texas Northern District Court

Docket No: 14-10-01221-CR

Case Date: 12/22/2011

Plaintiff: Deon Stewart

Defendant: The State of Texas--Appeal from 122nd District Court of Galveston County (Memorandum Opinion )

Preview:Affirmed and Memorandum Opinion filed December 22, 2011.

In The

Fourteenth Court of Appeals
NO. 14-10-01221-CR DEON STEWART, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 09CR3036

MEMORANDUM

OPINION

Appellant Deon Stewart pleaded guilty to the charge of knowingly possessing the controlled substance Methylenedioxy Methamphetamine, and the trial court assessed an enhanced sentence of confinement for twenty-five years. Appellant argues that the trial court erroneously denied his motion for new trial. We affirm. BACKGROUND At approximately 9:30 p.m. on October 12, 2009, Texas City Police Department Officer Ira Fowler was on patrol headed southbound on Vauthier Road and approaching the intersection of Blue Jay Drive. Approximately 100 feet in front of Officer Fowler, a

Nissan Armada made a left turn from Blue Jay Drive to go southbound on Vauthier Road, allegedly without signaling. Officer Fowler activated his emergency lights and stopped the Nissan Armada shortly thereafter. Officer Fowler asked the driver, appellant, for a driver`s license, and appellant told Officer Fowler that he left it at home but could go get it. Officer Fowler noted that appellant seemed like he was trying to get away and appeared real nervous. His hands were real shaky. Officer Fowler asked appellant to exit the vehicle, and appellant actually tried to walk away from me. I had to step in front of him and say, Whoa, whoa, whoa. Where are you going[?]` and ask him to step back to the vehicle. Officer Fowler attempted to conduct a pat-down of appellant`s outer clothing, and at that point he took off running. As appellant ran, Ecstasy pills fell from his pants pocket. Officer Fowler arrested appellant, who was later indicted for knowingly possessing the controlled substance Methylenedioxy Methamphetamine.1 Appellant filed a motion to suppress the evidence recovered pursuant to the traffic stop. The trial court denied the motion, and appellant pleaded guilty. The trial court assessed an enhanced sentence of confinement for twenty-five years on November 8, 2010. Appellant filed a motion for new trial on December 8, 2010, arguing that his motion to suppress was erroneously denied. The trial court held a hearing on appellant`s motion on February 22, 2011. The trial court did not grant appellant`s motion for new trial. Appellant argues in one issue on appeal that the trial court should have granted the motion for new trial because Officer Fowler did not have reasonable suspicion to conduct the initial traffic stop. ANALYSIS I. Timeliness of Motion for New Trial Hearing We first address the State`s preliminary contention that appellant`s issue is moot
Appellant initially was indicted for possession of between four and 400 grams of the controlled substance Methylenedioxy Methamphetamine with the intent to deliver, but the State later reduced the charge to the lesser-included offense of possession in exchange for appellant`s plea of guilty.
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and that [t]he Trial Court could not have abused its discretion by denying [appellant`s] motion for new trial because the motion was overruled by operation of law, rendering the February 22, 2011 hearing untimely. The trial court imposed appellant`s sentence on November 8, 2010. Appellant filed a timely motion for new trial on December 8, 2010. See TEX. R. APP. P. 21.4(a) (motion for new trial must be filed within thirty days after date on which trial court imposes sentence). That motion was overruled by operation of law on January 24, 2011. See TEX. R. APP. P. 21.8(a), (c) (motion for new trial not ruled on by written order within 75 days after sentence imposed will be deemed denied). We therefore agree with the State that the trial court`s February 22, 2011 hearing was untimely. See State v. Belcher, Nos. 14-00-01197-CR, 14-00-01198-CR, 2001 WL 306181, at *1 (Tex. App.--Houston [14th Dist.] Mar. 29, 2001, pet. ref`d) (per curiam) (not designated for publication) (When the time in which to rule on a defendant`s motion has expired, any subsequent action on the motion must be characterized as a nullity. (citing State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987) (orig. proceeding))). Although we may not consider the arguments and any evidence presented at the untimely hearing, we disagree with the State that we are precluded from reviewing the trial court`s failure to grant appellant`s otherwise timely motion. We therefore continue with our consideration of appellant`s issue on appeal. II. Motion for New Trial and Motion to Suppress Appellant argues in his motion for new trial that [t]he ruling on [appellant`s] Motion to Suppress in this cause is contrary to the law and the evidence. Appellant argues in his motion to suppress and in his brief on appeal that Officer Fowler did not have reasonable suspicion to stop appellant for failing to signal2 because (1) Officer Fowler testified that he could not see appellant`s left rear signal while he was stopped at
Texas Transportation Code section 545.104(b) states: An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn. TEX. TRANSP. CODE ANN.

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